No. 08-1065

In the Supreme Court of the United States

POTTAWATTAMIE COUNTY, IOWA, ET AL.,PETITIONERS

v.

CURTIS W. MCGHEE, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATESAS AMICUS CURIAE SUPPORTING PETITIONERS

ELENA KAGANSolicitor General

Counsel of RecordTONY WEST

Assistant Attorney GeneralNEAL KUMAR KATYAL

Deputy Solicitor GeneralBENJAMIN J. HORWICH

Assistant to the SolicitorGeneral

BARBARA L. HERWIGJOSHUA WALDMAN

Attorneys Department of JusticeWashington, D.C. 20530-0001(202) 514-2217

(I)

QUESTION PRESENTED

Whether a prosecutor is subject to personal liabilityunder 42 U.S.C. 1983 for a wrongful conviction and in-carceration where the prosecutor allegedly procuredfalse testimony during the criminal investigation andthen introduced that same testimony against the crimi-nal defendant at trial to obtain a conviction.

(III)

TABLE OF CONTENTSPage

Interest of the United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2Summary of argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4Argument:I. This court should reject respondents’ efforts to circum-

vent absolute immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8A. The use of fabricated evidence against a criminal

defendant violates the defendant’s constitutionalrights, but a prosecutor is absolutely immune fromsuit for such use . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B. Imbler’s promise of absolute prosecutorial immu-nity can be vindicated only by rejecting respon-dents’ novel theory of prosecutorial liability . . . . . . . . . 11

II. Petitioners are not liable under Section 1983 for fab- rication of evidence before trial . . . . . . . . . . . . . . . . . . . . . 13A. Fabrication of evidence during an investigation

does not, by itself, violate the Constitution . . . . . . . . . . 14B. Generalized notions of foreseeability provide no

basis for Section 1983 liability for fabrication ofevidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

C. A prosecutor who is immune from suit for use offabricated evidence at trial is not liable under Sec-tion 1983 for fabrication of that evidence beforetrial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201. Common law malicious prosecution informs

an action brought under Section 1983 seekingdamages for unconstitutional confinement im-posed pursuant to legal process . . . . . . . . . . . . . . . . 22

IV

Table of Contents—Continued: Page

2. By analogy to common law malicious prosecu-tion, a police officer who fabricates evidencemay be liable for deprivation of a criminal de-fendant’s constitutional rights when the evi-dence is used at trial . . . . . . . . . . . . . . . . . . . . . . . . . 24

3. By analogy to common law malicious prosecu-tion, a prosecutor who fabricates evidence andintroduces it at trial is not liable under Section1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

D. Imposing Section 1983 liability on prosecutors isunwarranted on policy grounds because criminaldefendants have alternative civil remedies and ade-quate safeguards exist against prosecutors’ illegalbehavior . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

TABLE OF AUTHORITIES

Cases:

Anderson v. Creighton, 483 U.S. 635 (1987) . . . . . . . . . . . . 11

Ashcroft v. Iqbal, 129 S. Ct. 1949 (2009) . . . . . . . . . . . . . . . 13

Baker v. McCollan, 443 U.S. 137 (1979) . . . . . . . . . . . . . . . 14

Barts v. Joyner, 865 F.2d 1187 (11th Cir.), cert.denied, 493 U.S. 831 (1989) . . . . . . . . . . . . . . . . . . . . . . . 26

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) . . . . . . . . 13

Bivens v. Six Unknown Named Agents of Fed.Bureau of Narcotics, 403 U.S. 388 (1971) . . . . . . . . . . . . 1

Briscoe v. LaHue, 460 U.S. 325 (1983) . . . . . . . . . . . . . . 9, 27

Brower v. County of Inyo, 489 U.S. 593 (1989) . . . . . . . . . 19

V

Cases—Continued: Page

Buckley v. Fitzsimmons:

509 U.S. 259 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . passim

20 F.3d 789 (7th Cir. 1994), cert. denied,513 U.S. 1085 (1995) . . . . . . . . . . . . . . . . . . . . . . . . 8, 15

Burns v. Reed, 500 U.S. 478 (1991) . . . . . . . . . . 10, 15, 30, 32

Butz v. Economou, 438 U.S. 478 (1978) . . . . . . . . . . . . . 30, 32

California v. Hodari D., 499 U.S. 621 (1991) . . . . . . . . . . . 18

Carey v. Piphus, 435 U.S. 247 (1978) . . . . . . . . . . . . . . . . . 22

Chavez v. Martinez, 538 U.S. 760 (2003) . . . . . . . . . . . . . . 16

Collins v. City of Harker Heights, 503 U.S. 115 (1992) . . . 16

County of Sacramento v. Lewis, 523 U.S. 833 (1998) . . . . 17

Daniels v. Williams, 474 U.S. 327 (1986) . . . . . . . . . . . . . . 19

Davis v. Scherer, 468 U.S. 183 (1984) . . . . . . . . . . . . . . . . . 11

Dellums v. Powell, 660 F.2d 802 (D.C. Cir. 1981) . . . . . . . 30

District Attorney’s Office v. Osborne,129 S. Ct. 2308 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . 19

Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949),cert. denied, 339 U.S. 949 (1950) . . . . . . . . . . . . . . . 10, 33

Hartman v. Moore, 547 U.S. 250 (2006) . . . . . . 10, 15, 27, 28

Heck v. Humphrey, 512 U.S. 477 (1994) . . . . . . . . . . . . 22, 23

Imbler v. Pachtman, 424 U.S. 409 (1976) . . . . . . . . . passim

Jones v. City of Chicago, 856 F.2d 985 (7th Cir. 1988) . . . 26

Kalina v. Fletcher, 522 U.S. 118 (1997) . . . . . . . . . 12, 23, 27

Landrigan v. City of Warwick, 628 F.2d 736(1st Cir. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Malley v. Briggs, 475 U.S. 335 (1986) . . . . . . . . . . 22, 23, 24

VI

Cases—Continued: Page

Martinez v. California, 444 U.S. 277 (1980) . . . . . . . . . . . . 19

Medina v. California, 505 U.S. 437 (1992) . . . . . . . . . . . . . 17

Memphis Cmty. Sch. Dist. v. Stachura,477 U.S. 299 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Michaels v. New Jersey, 222 F.3d 118 (3d Cir. 2000),cert. denied, 531 U.S. 1118 (2001) . . . . . . . . . . . . . . . . . . 15

Monroe v. Pape, 365 U.S. 167 (1961) . . . . . . . . . . . . . . . . . . 18

National Archives & Records Admin. v. Favish,541 U.S. 157 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Palsgraf v. Long Island R.R., 248 N.Y. 339 (1928) . . . . . . 19

Paul v. Davis, 424 U.S. 693 (1976) . . . . . . . . . . . . . . . 6, 17, 19

Perdu v. Connerly, 24 S.C.L. (Rice) 48 (1838) . . . . . . . . . . 25

Pyle v. Kansas, 317 U.S. 213 (1942) . . . . . . . . . . . . . . . . . . . 9

Senra v. Cunningham, 9 F.3d 168 (1st Cir. 1993) . . . . . . . 26

Smiddy v. Varney, 665 F.2d 261 (9th Cir. 1981),cert. denied, 459 U.S. 829 (1982) . . . . . . . . . . . . . . . . . . . 26

Stewart v. Cooley, 23 Minn. 347 (1877) . . . . . . . . . . . . . 30, 31

United States v. Verdugo-Urquidez,494 U.S. 259 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Van de Kamp v. Goldstein, 129 S. Ct. 855 (2009) . . . . 10, 32

Wallace v. Kato, 549 U.S. 384 (2007) . . . . . . . . . . . . . . . . . . 18

White v. Frank, 855 F.2d 956 (2d Cir. 1988) . . . . . . . . 26, 27

Yaselli v. Goff, 12 F.2d 396 (2d Cir. 1926), aff ’d,275 U.S. 503 (1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 31

Zahrey v. Coffey, 221 F.3d 342 (2d Cir. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 3, 14, 15, 18, 20

VII

Constitution, statutes and rule: Page

U.S. Const.:

Amend. IV . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 18

Amend. V (Due Process Clause) . . . . . . . . . . . . . . . . 16, 19

Amend. VIII . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Amend. XIV, § 1 (Due Process Clause) . . . . . . . . . . 16, 19

Federal Tort Claims Act, 28 U.S.C. 2680(h) . . . . . . . . . . . . 33

18 U.S.C. 241 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17

18 U.S.C. 242 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17, 19, 32

28 U.S.C. 1495 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

28 U.S.C. 2513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Ala. Code § 29-2-156 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Cal. Penal Code § 4904 (2000) . . . . . . . . . . . . . . . . . . . . . . . . 33

705 Ill. Comp. Stat. Ann. 505/8 (West 2007) . . . . . . . . . . . . 33

735 Ill. Comp. Stat. Ann. 5/2-702 (West Supp. 2009) . . . . . 33

Iowa Code Ann. (West 1998):

§ 663A.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

§ 669.14.5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

La. Rev. Stat. Ann. § 15:572.8 (West 2005) . . . . . . . . . . . . . 33

Maine Rev. Stat. Ann. tit. 14, § 8241 (West 2003) . . . . . . . 33

N.J. Stat. Ann. § 52:4C-1 (West 2001) . . . . . . . . . . . . . . . . . 33

Ohio Rev. Code Ann. § 2743.48 (West 2000) . . . . . . . . . . . . 33

Okla. Stat. Ann. tit. 51, § 154.B (West 2008) . . . . . . . . . . . . 33

Tex. Civ. Prac. & Rem. Code Ann. § 103.001(Vernon 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Va. Code Ann. § 8.01-195.11 (West 2009) . . . . . . . . . . . . . . 33

Wis. Stat. Ann. § 775.05 (West 2009) . . . . . . . . . . . . . . . . . . 33

VIII

Rule—Continued: Page

Fed. R. Civ. P. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Miscellaneous:

2 Thomas M. Cooley, A Treatise on the Law of Tortsor the Wrongs Which Arise Independently of Con-tract (3d ed. 1906) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Restatement (Second) of Torts (1977) . . . . . 20, 24, 25, 26, 28

(1)

In the Supreme Court of the United States

No. 08-1065

POTTAWATTAMIE COUNTY, IOWA, ET AL.,PETITIONERS

v.

CURTIS W. MCGHEE, JR., ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATESAS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

The United States has a substantial interest in thecircumstances in which federal officers can be liable ina civil action for alleged violations of constitutionalrights. The United States also has a substantial interestin the rules of pleading and proof in civil actions againstfederal officers. Although this case involves a claimagainst state prosecutors under 42 U.S.C. 1983, thisCourt has invoked its Section 1983 jurisprudence incases involving the implied cause of action against fed-eral officers for the deprivation of constitutional rights,recognized in Bivens v. Six Unknown Named Agents ofFederal Bureau of Narcotics, 403 U.S. 388 (1971).

2

1 “Petitioners” in this brief refers to Hrvol and Richter. The recordis not entirely clear as to whether both Hrvol and Richter participatedin the prosecutions of both respondents; this brief assumes they did.

STATEMENT

1. In 1977, John Schweer was shot and killed whileworking as a security guard at an automobile dealershipin Council Bluffs, Iowa. Pet. App. 4a, 24a. Two CouncilBluffs police detectives led the murder investigation.Petitioners Joseph Hrvol and David Richter, both pros-ecutors for Pottawattamie County (which embracesCouncil Bluffs), were involved in the investigation. Id.at 3a-4a, 25a, 81a-82a.

Council Bluffs authorities came to believe that oneKevin Hughes had information about the Schweer mur-der; on questioning, Hughes eventually alleged that re-spondents Curtis McGhee and Terry Harrington mur-dered Schweer. Pet. App. 6a-7a, 28a-32a. Respondentswere then charged with the murder, and prosecuted bypetitioners.1 Respondents were found guilty of first de-gree murder in separate trials at which Hughes testifiedagainst them. Each was sentenced to life in prison. Id.at 7a, 35a-36a.

In 1999, Harrington obtained previously undisclosedreports from the Council Bluffs Police Department,which pointed to the existence of another suspect for themurder. Harrington pursued state post-conviction reliefbased on this failure to disclose exculpatory evidence,and the Iowa Supreme Court ultimately vacated his con-viction. Pet. App. 8a, 38a-39a. The State declined toretry him, and all charges were dismissed. McGheereached an agreement with the district attorney to enteran Alford plea to second degree murder, and to be re-sentenced to time already served. Id. at 8a, 43a-44a.

3

2. Respondents brought actions in the United StatesDistrict Court for the Southern District of Iowa againstpetitioners and others, pleading (as relevant here) sev-eral claims under 42 U.S.C. 1983. Respondents claimed,inter alia, that in investigating Schweer’s murder, peti-tioners coerced Hughes to implicate respondents in themurder; disregarded obviously false details of Hughes’account and coached him to give an account more consis-tent with known facts; and coerced false witness testi-mony to corroborate Hughes’ story. See Pet. App. 30a-35a.

3. Petitioners moved for summary judgment on thegrounds of absolute and qualified immunity, which thedistrict court denied in relevant part. The court firstheld that petitioners are not protected by absolute im-munity for coaching and coercing witnesses to offer falseor fabricated evidence during the investigation, becausepetitioners lacked probable cause to arrest either re-spondent for any crime, Pet. App. 59a-73a, and underBuckley v. Fitzsimmons, 509 U.S. 259, 273 (1993), “priorto the establishment of probable cause to arrest, a pros-ecutor generally will not be entitled to absolute immu-nity,” Pet. App. 55a. The district court concluded thatpetitioners are, however, entitled to absolute immunitywhen initiating criminal proceedings and presenting theState’s case. Id. at 78a-80a.

The district court also rejected Hrvol’s and Richter’sclaims to qualified immunity. The court saw no reasonwhy a prosecutor who manufactures evidence that hesubsequently uses at trial would be immune under Sec-tion 1983, but a police officer who does the same wouldbe liable. The district court noted that Zahrey v. Coffey,221 F.3d 342 (2d Cir. 2000), perceived the same problem,and resolved it by holding that a prosecutor’s fabrication

4

of evidence gives rise to Section 1983 liability, so long asthe use of that evidence to commit a deprivation of lib-erty is reasonably foreseeable and the evidence is, infact, so used. Pet. App. 107a-108a.

4. On interlocutory appeals from the denials of im-munity, the court of appeals affirmed in relevant part.The court agreed with the district court that petitionersare not entitled to absolute immunity for actions takenbefore they had probable cause to arrest respondents.Pet. App. 11a-12a. As to qualified immunity, the courtof appeals also embraced Zahrey, and held that petition-ers violated respondents’ “substantive due processrights by obtaining, manufacturing, coercing and fabri-cating evidence before filing formal charges.” Id. at 19a.The court of appeals apparently agreed with the districtcourt that this right was clearly established, summarilyconcluding that “[t]he district court was correct in deny-ing qualified immunity to Hrvol and Richter for theiracts before the filing of formal charges.” Ibid.

SUMMARY OF ARGUMENT

I. This Court has interpreted Section 1983 to provideabsolute immunity to prosecutors for activities “inti-mately associated with the judicial phase of the criminalprocess.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976).The Court has done so because that immunity comportswith the common law tradition and because the threat ofliability could alter prosecutorial decisions and divertprosecutors’ time and energy into defending civil suitsinstead of vindicating the criminal laws. Id. at 421-429.

If the allegations here are true, petitioners engagedin prosecutorial misconduct of an execrable sort, involv-ing a complete breach of the public trust. But absoluteimmunity reflects a policy judgment that such conduct

5

is properly addressed not through civil liability, butthrough a host of other deterrents and punishments,including judicial oversight of criminal trials, and crimi-nal and professional disciplinary proceedings againstprosecutors. Imbler, 424 U.S. at 429. The Court haslong held that, given these alternative tools, allowingcriminal defendants to bring civil suits against prosecu-tors will produce few additional benefits and could causeserious harm.

What respondents seek here is, in every effect, a sub-version of absolute prosecutorial immunity. To be sure,this Court has recognized that a prosecutor “neither is,nor should consider himself to be, an advocate”—andthus not absolutely immune—“before he has probablecause to have anyone arrested.” Buckley v. Fitzsim-mons, 509 U.S. 259, 274 (1993). But the Court has neversaid that a prosecutor can be liable for actions at trial,simply because they relate back to earlier conduct at theinvestigatory stage (i.e., before probable cause is estab-lished). To do so would transform the absolute immu-nity of Imbler into little more than a pleading rule;plaintiffs barred under Imbler would simply draft theircomplaint to refer to the prosecutor’s investigation andpreparation of the case instead of his activity at trial.

II. Established law provides no support for findingprosecutors liable for alleged acts of fabrication at theinvestigatory stage. Courts agree that the act of fabri-cation, by itself, without any use of the evidence, is nota constitutional violation. Other constitutional torts,such as searches or seizures in violation of the FourthAmendment, may be complete before trial, so a prosecu-tor could be liable for them. But to find a due processviolation complete at the moment of fabrication wouldmean that any evidence generated by the government

6

anywhere (even if unused at trial) would give rise to afreestanding Section 1983 or Bivens suit. That holdingwould work a profound change in existing law.

Recognizing that difficulty, some courts have insteadheld liable the prosecutor who fabricates evidence be-cause the fabrication can foreseeably result in the use ofthat evidence at trial to obtain a conviction. But thistheory is also at odds with the Court’s holdings. Section1983 does not impose liability for all the foreseeable con-sequences of a state official’s actions. The Constitutionis not a “font of tort law,” Paul v. Davis, 424 U.S. 693,701 (1976), and this Court has rightly resisted such anunbounded reading of Section 1983. Instead, the Courthas consistently looked to common law tort analogies tokeep Section 1983 actions within proper bounds.

Those common law principles explain why prosecu-tors may not be held liable for fabricating evidence theyintroduce at trial, even though police officers who fabri-cate evidence may be held liable under Section 1983.The closest common law analogy here is malicious prose-cution, which provides a remedy for the wrongful insti-tution of criminal proceedings. The prosecutor is abso-lutely immune for that act. A police officer who fabri-cates evidence and supplies it for use at trial may beheld liable at common law for the institution of proceed-ings, under a species of vicarious liability known as “pro-curement.” But procurement has no application to pros-ecutors because they are already directly responsi-ble—albeit immune—for the wrongful institution of pro-ceedings and introduction of evidence there.

This is not mere formalism; it is an expression oflongstanding and important policy. The common lawlimits of the malicious prosecution tort are the indis-pensable complement to the common law immunity of

7

prosecutors. Together, they provide the utmost protec-tion to prosecutors in the performance of their officialduties. And this strong common law protection is re-flected in the Court’s own precedents, which have con-sistently recognized the societal need for prosecutors tocarry out their work “with courage and independence.”Imbler, 424 U.S. at 423 (internal quotation marks andcitation omitted).

Even with strong rules of prosecutorial immunityin place, injured parties retain several mechanismsfor redress. Prosecutors may remain liable for any num-ber of investigation-stage activities, as to which theyenjoy only qualified immunity—for example, conductingsearches and seizures that violate the Fourth Amend-ment. As noted above, police officers may be liableif they wrongfully procure criminal proceedings by sup-plying fabricated evidence that is used at trial to obtaina conviction. And on facts like those alleged here,a person who bears the title prosecutor, but who“perform[ed] [only] the investigative functions normallyperformed by a detective or police officer,” Buckley,509 U.S. at 273, would be liable. The exemption fromliability in this case, although absolute, applies only to adiscrete set of individuals for a discrete set of activities.That protection does no more than deliver on Imbler’spromise that prosecutors are absolutely immune fromsuit for bringing and presenting the State’s case at trial.

Imbler’s promise of absolute immunity becomesmeaningless if any acquitted individual could pierce theprosecutor’s protection by pleading that he was some-how involved in a pre-trial investigation. The commonlaw has never recognized such a theory of liability, andbecause that theory would undermine the purposes ofabsolute prosecutorial immunity, the Court should not

8

do so now. If prosecutors are to be liable for their actsat trial, that result should be accomplished by Congress,and not read into either the longstanding statutory textof Section 1983 or the nonstatutory remedy that thisCourt implied in Bivens.

ARGUMENT

I. THIS COURT SHOULD REJECT RESPONDENTS’ EF-FORTS TO CIRCUMVENT ABSOLUTE IMMUNITY

By their own account, respondents’ harm arose fromthe use of fabricated evidence at trial to convict them.In simplest terms, if that is the act that harmed respon-dents, and petitioners are immune for that act, then pe-titioners are not civilly liable to respondents. Even anunconscionable act of fabrication does not transform aprosecutor’s acts at trial into a source of civil liability.As Judge Easterbrook observed on remand from thisCourt in Buckley, “Obtaining [a coerced] confession isnot covered by immunity but does not violate any ofBuckley’s rights; using the confession could violateBuckley’s rights but would be covered by absolute immu-nity.” Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7thCir. 1994), cert. denied, 513 U.S. 1085 (1995).

Important public policies and common law traditionsfavor absolute prosecutorial immunity. Those same poli-cies and traditions disfavor any artful attempt to evadethat immunity.

A. The Use Of Fabricated Evidence Against A CriminalDefendant Violates The Defendant’s ConstitutionalRights, But A Prosecutor Is Absolutely Immune FromSuit For Such Use

One potential theory of civil liability in this case—that petitioners’ use of fabricated evidence at trial to

9

obtain convictions deprived respondents of their consti-tutional rights—fails because petitioners are absolutelyimmune.

The use of fabricated evidence against a criminaldefendant “subjects [the defendant] to the deprivationof * * * rights * * * secured by the Constitution,”42 U.S.C. 1983. E.g., Briscoe v. LaHue, 460 U.S. 325,326 n.1 (1983) (“knowing use of perjured testimony vio-lates due process”); Pyle v. Kansas, 317 U.S. 213, 216(1942) (“perjured testimony, knowingly used by theState authorities to obtain [a] conviction” works “a de-privation of rights guaranteed by the Federal Constitu-tion”). The United States can bring criminal chargesagainst a prosecutor who knowingly presents such fabri-cated testimony, see 18 U.S.C. 242, or conspires with awitness or police officer to do so, see 18 U.S.C. 241.

A prosecutor, however, may receive absolute immu-nity from suit for acts violating the Constitution in orderto advance important societal values. This Court’s casesrecognize a common law tradition of immunity that en-sures that prosecutors are free to carry out their work“with courage and independence.” Imbler v. Pachtman,424 U.S. 409, 423 (1976) (internal quotation marks andcitation omitted). Without a strict rule of immunity,“suits could be expected with some frequency, for a de-fendant often will transform his resentment at beingprosecuted into the ascription of some improper andmalicious actions to the State’s advocate.” Id. at 425.Such suits raise the “concern that harassment by un-founded litigation would cause a deflection of the prose-cutor’s energies from his public duties, and the possibil-ity that he would shade his decisions instead of exercis-ing the independence of judgment required by his publictrust.” Id. at 423. These suits are particularly vexing

10

because “allegations of [prosecutorial] misconduct are‘easy to allege and hard to disprove.’ ” Hartman v.Moore, 547 U.S. 250, 257 (2006) (quoting National Ar-chives & Records Admin. v. Favish, 541 U.S. 157, 175(2004)). Moreover, they “often would require a virtualretrial of the criminal offense in a new forum.” Imbler,424 U.S. at 425. Absolute immunity inevitably includeswrongdoers within the scope of its protection because ofthe paramount need to achieve broad societal goals. Ineffect, the doctrine “reflects ‘a balance’ of ‘evils’ ”—where the benefits of fearless prosecution outweigh thecost of immunizing wrongful conduct. Van de Kamp v.Goldstein, 129 S. Ct. 855, 859 (2009) (quoting Gregoirev. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand, J.),cert. denied, 339 U.S. 949 (1950)).

Under these principles, “prosecutors are absolutelyimmune from liability under [Section] 1983 for their con-duct in ‘initiating a prosecution and in presenting theState’s case.’ ” Burns v. Reed, 500 U.S. 478, 486 (1991)(quoting Imbler, 424 U.S. at 431); see Buckley v.Fitzsimmons, 509 U.S. 259, 281 (1993) (Scalia, J., con-curring) (“Insofar as [petitioner’s false-evidence claims]are based on respondents’ supposed knowing use of fab-ricated evidence[,] * * * immunity provides completeprotection.”). By virtue of this rule, petitioners haveabsolute immunity from civil suit for the use at trial ofany evidence, and therefore cannot be held liable fortheir introduction at trial of allegedly fabricated evi-dence in this case.

11

B. Imbler’s Promise Of Absolute Prosecutorial ImmunityCan Be Vindicated Only By Rejecting Respondents’Novel Theory Of Prosecutorial Liability

Absolute immunity would mean very little if, as re-spondents propose, they have a cause of action forthe same harm (imprisonment on conviction), flowingfrom the same act (introduction of fabricated evidence),against the same defendant (the prosecutor), that wouldusually trigger immunity, so long as pled with the spot-light on an earlier action (the initial fabrication). Thefundamental flaw with that approach is that it allows anallegation relating to the earlier action, which does notitself produce the harm complained of and could not it-self form the basis of suit, to alter the result in the case.That would render prosecutorial immunity close to anempty shell, which plaintiffs would take into accountonly for the purpose of pleading around it. As JusticeKennedy observed in Buckley, a prosecutor would not beable to invoke absolute immunity if “the claimant isclever enough to include some actions taken by the pros-ecutor prior to the initiation of prosecution.” 509 U.S. at287 (Kennedy, J., concurring in part and dissenting inpart). That is precisely what respondents have donehere to powerful effect, even though the earlier actionscannot give rise to liability and so are not the gravamenof their complaints.

In the analogous context of considering claims ofqualified immunity, this Court has emphatically rejectedattempts at artful pleading to evade the “balance that[the Court’s] cases strike between the interests in vindi-cation of citizens’ constitutional rights and in public offi-cials’ effective performance of their duties.” Andersonv. Creighton, 483 U.S. 635, 639 (1987) (quoting Davis v.

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2 The difference between the immunity question and the cause-of-action question is also evident in Kalina v. Fletcher, 522 U.S. 118 (1997).There, the Court held that a prosecutor has only qualified immunity forswearing a false affidavit supporting an arrest warrant application—the

Scherer, 468 U.S. 183, 195 (1984)). Here, delivering onthe promise of Imbler requires rejecting respondents’attempts to plead around absolute immunity. The “vig-orous and fearless performance of the prosecutor’sduty,” Imbler, 424 U.S. at 427, would be impossible ifthat immunity could be evaded so easily. In any case inwhich a prosecutor was involved in an investigation—forexample, in interviews of witnesses—he might at trial be“hampered in exercising [his] judgment as to the use ofsuch witnesses by concern about resulting personal lia-bility.” Id. at 426. And conversely, he might be de-terred from becoming involved in pre-trial investigationin the first instance lest that involvement, coupled withthe fear of liability, distort his judgments about whatevidence to use at trial. The rule respondents seekwould undermine Imbler’s protections and threaten toundermine, in just the way that decision sought to avoid,the effectiveness and integrity of criminal investigationsand trials.

Critical to this analysis is that respondents have nocause of action for the non-immunized (wholly pre-trial)conduct of fabrication that their complaints allege. Seepp. 13-33, infra. Section 1983 absolute immunity doc-trine presupposes that some acts need not be immunizedbecause they do not give rise to liability in the first in-stance. See, e.g., Buckley, 509 U.S. at 275 n.5 (warningagainst “conflat[ing] the question whether a [Section]1983 plaintiff has stated a cause of action with the ques-tion whether the defendant is entitled to absolute immu-nity for his actions”).2 Complaints based on such acts

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Court did not hold that there is a Section 1983 cause of action againstthe prosecutor for that act.

3 A complaint is also subject to Federal Rule of Civil Procedure 8,which demands that it “contain sufficient factual matter, accepted astrue, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v.Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,550 U.S. 544, 570 (2007)). However the Court decides this case, Iqbalshould ensure the dismissal of complaints that “do not permit the courtto infer more than the mere possibility of misconduct,” id. at 1950. Butthat protection is no substitute for a proper interpretation of Section1983 that prevents plaintiffs from circumventing prosecutorial immu-nity. Some plaintiffs will succeed in meeting the pleading standard; andin any event, this Court has never suggested that pleading require-ments are an adequate substitute for categorical exemption fromliability.

fail to state a claim—or, if they are really about otheracts that would give rise to a claim but are immunized,the complaints should be dismissed on that basis. Thatis the case here. Respondents could not omit from awell-pleaded complaint an allegation that the fabricatedevidence was introduced at trial to obtain their convic-tions; that fact is essential to show the causal connectionbetween the fabrication and the actual harm they suf-fered, which was imprisonment on conviction. But re-spondents are absolutely immune for that critical act ofintroducing the evidence. If Imbler is to have any force,it must be read to exempt prosecutors from liability insuch a situation, when the substance of the claim restson an immune act, regardless of how artful the com-plaint is in avoiding its mention.3

II. PETITIONERS ARE NOT LIABLE UNDER SECTION 1983FOR FABRICATION OF EVIDENCE BEFORE TRIAL

The decision below rested on one of two possible the-ories, but was vague as to which one it employed. It

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stated its holding as “immunity does not extend to theactions of a County Attorney who violates a person’ssubstantive due process rights by obtaining, manufac-turing, coercing and fabricating evidence before filingformal charges.” Pet. App. 19a. This statement sug-gests that the Court found a violation of Section 1983based solely on petitioners’ pre-trial conduct. Yet theopinion below also relied on Zahrey v. Coffey, 221 F.3d342 (2d Cir. 2000), which reasoned instead that the rea-sonably foreseeable causal connection between fabrica-tion of evidence and its use at trial is a sufficient basisfor imposing liability on a prosecutor. See Pet. App. 18a(liability is appropriate “provided that the deprivation ofliberty . . . can be shown to be the result of [the prosecu-tor’s] fabrication”) (quoting Zahrey, 221 F.3d at 344,349) (brackets in original).

Neither theory is sound. Courts have never recog-nized a freestanding due process right against fabrica-tion of evidence. A defendant’s due process right relat-ing to fabrication kicks in only at trial, when such evi-dence is introduced in court. So, too, Zahrey’s foresee-ability reasoning would profoundly alter existing law.That theory would import into Section 1983, in an en-tirely novel way, generalized notions of causation. Atthe same time, it would disregard specific common lawdoctrine relevant to the question—namely the tort ofmalicious prosecution and its limits.

A. Fabrication Of Evidence During An Investigation DoesNot, By Itself, Violate The Constitution

The first step in an immunity case underSection 1983 is to identify the constitutional right alle-gedly infringed. Baker v. McCollan, 443 U.S. 137, 140(1979). Here, petitioners’ fabrication of evidence, by

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itself, cannot be the constitutional violation on whichliability is based.

1. Courts broadly agree that fabrication of evidence,standing alone, does not violate any constitutional rightof a criminal defendant (regardless whether it may vio-late someone else’s). See, e.g., Michaels v. New Jersey,222 F.3d 118, 123 (3d Cir. 2000), cert. denied, 531 U.S.1118 (2001); Zahrey, 221 F.3d at 348 (“The manufactureof false evidence, ‘in and of itself,’ * * * does not im-pair anyone’s liberty, and therefore does not impair any-one’s constitutional right.”) (citation omitted); Buckley,20 F.3d at 794-795 (Easterbrook, J.) (“Coercing wit-nesses to speak * * * is a genuine constitutionalwrong, but the persons aggrieved would be [the coercedwitnesses] rather than Buckley. * * * Obtaining theconfession [from other people] is not covered by immu-nity but does not violate any of Buckley’s rights.”);Landrigan v. City of Warwick, 628 F.2d 736, 744 (1stCir. 1980) (“[W]e do not see how the existence of a falsepolice report, sitting in a drawer in a police station, byitself deprives a person of a right secured by the Consti-tution and laws.”). Cf. Hartman, 547 U.S. at 262 n.9(“No one here claims that simply conducting a retalia-tory investigation with a view to promote a prosecutionis a constitutional tort.”).

Although Buckley, 509 U.S. at 272, reserved thequestion, every Member of this Court suggested that thedistinction between the preparation and the use at trialof fabricated evidence has constitutional significance. “Iam aware of[] no authority for the proposition that themere preparation of false evidence, as opposed to its usein a fashion that deprives someone of a fair trial or oth-erwise harms him, violates the Constitution.” Id. at 281(Scalia, J., concurring); see id. at 271-272 (“The location

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of the injury [as between trial and investigation] may berelevant to the question whether a complaint has ade-quately alleged a cause of action for damages.”); id. at275 n.5 (same); id. at 285 (Kennedy, J., concurring inpart and dissenting in part) (“Indeed, it appears that theonly constitutional violations these actions are alleged tohave caused occurred within the judicial process.”). Thisview accords with this Court’s understanding of othertrial rights. For example, “[s]tatements compelled bypolice interrogations of course may not be used againsta defendant at trial, * * * but it is not until their use ina criminal case that a violation of the Self-IncriminationClause occurs.” Chavez v. Martinez, 538 U.S. 760, 767(2003) (plurality opinion); see United States v.Verdugo-Urquidez, 494 U.S. 259, 264 (1990).

2. Contradicting these authorities, the court of ap-peals held that “a County Attorney * * * violates a per-son’s substantive due process rights by obtaining, manu-facturing, coercing and fabricating evidence before filingformal charges.” Pet. App. 19a (emphasis added). ThisCourt has been “reluctant to expand the concept of sub-stantive due process,” Collins v. City of Harker Heights,503 U.S. 115, 125 (1992), and the right articulated by thecourt of appeals cannot be squared with this Court’sjurisprudence.

The Due Process Clause states: “nor shall any Statedeprive any person of life, liberty, or property, withoutdue process of law.” U.S. Const. Amend. XIV, § 1; ac-cord id., Amend. V. A due process violation requires,inter alia, a cognizable deprivation of life, liberty, orproperty. Absent such a deprivation, there is no viola-tion. See, e.g., District Attorney’s Office v. Osborne,129 S. Ct. 2308, 2319 (2009). When a state actor merelyfabricates evidence—without putting that evidence to

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4 Although mere fabrication of evidence, without more, does notviolate the Constitution, and therefore could not be prosecuted under18 U.S.C. 242, it may support a prosecution under 18 U.S.C. 241 if theprosecutor conspired to use the fabricated evidence to injure anotherperson in violation of the Constitution.

use in any way—the requisite deprivation of life, liberty,or property is missing. And even if some deprivationwere found, a right against unused fabricated evidencedoes not have a sufficiently “long history” of recognition,and is not “ ‘so rooted in the traditions and conscience ofour people as to be ranked as fundamental.’ ” Id. at2322, 2320 (quoting Medina v. California, 505 U.S. 437,446 (1992)). Similarly, the mere creation of false evi-dence—assuming it sits unused in some police file orgovernment archive—is hardly conduct that “shocks theconscience.” See County of Sacramento v. Lewis, 523U.S. 833, 846-850 (1998).4

Indeed, because the decision below does not rely onany particular use of false evidence, it appears to go fartoward constitutionalizing simple precepts of honestpublic record-keeping. Every police or investigatoryreport, even though filed away without further action,could rise to the level of a constitutional injury upon ashowing that some information in the report was know-ingly false, or that public officials had failed to correct iton demand. The cause of action would lie even thoughthe inaccuracies resulted in no concrete harm or, if thefalse records were released, only a generalized reputa-tional injury. Yet this Court has long held that suchinchoate interests are “neither ‘liberty’ nor ‘property’guaranteed against state deprivation without due pro-cess of law.” Paul v. Davis, 424 U.S. 693, 712 (1976).

The novel pre-trial right that the court of appealsposited finds no support in previously recognized consti-

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tutional rights applying to criminal investigations. Onesuch right arises from the Fourth Amendment, whoseviolation—an arrest or search without probable cause—usually is complete before trial. See Wallace v. Kato,549 U.S. 384, 390 n.3 (2007). Thus, a prosecutor commit-ting such a violation at the investigatory stage would beliable under Section 1983, subject only to a defense ofqualified immunity. See Buckley, 509 U.S. at 273. Butthe mere fabrication of evidence is not a Fourth Amend-ment violation, because an act of fabrication is not asearch or seizure. See California v. Hodari D., 499 U.S.621 (1991). Neither is the fabrication of evidence assimi-lable to any other known pre-trial constitutional viola-tion. Because this is so, regardless of the identity of thedefendant, any recovery by respondents under Section1983 must be for a harm suffered at a later stage of theirprosecution, when the fabricated evidence was usedagainst them at trial.

B. Generalized Notions Of Foreseeability Provide No BasisFor Section 1983 Liability For Fabrication Of Evidence

Rather than finding a complete constitutional depri-vation before trial, Zahrey based Section 1983 liabilityon the reasonable foreseeability that fabricated evidencewill be used at trial to obtain a conviction. 221 F.3d at351-354. The court reasoned “that [S]ection 1983 ‘shouldbe read against the background of tort liability thatmakes a man responsible for the natural consequencesof his actions.’ ” Id. at 349-350 (quoting Monroe v. Pape,365 U.S. 167, 187 (1961)).

Zahrey’s “reasonable foreseeability” principle iswrong for at least three reasons. First, Zahrey readstoo much into this Court’s statement in Monroe. Thatobservation was offered to suggest that Section 1983

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5 Notably, the Court has limited even this aspect of Monroe in caseslike Daniels v. Williams, 474 U.S. 327 (1986) (negligent deprivations oflife, liberty, or property do not violate the Due Process Clause), Estellev. Gamble, 429 U.S. 97, 106 (1976) (only deliberate indifference toserious medical needs, and not negligence such as the mere failure toprovide medical care, implicates Eighth Amendment prohibition againstcruel and unusual punishments), and Brower v. County of Inyo, 489U.S. 593, 596 (1989) (only intentional conduct rises to the level of aseizure under the Fourth Amendment).

carries no scienter requirement.5 This feature was rel-evant in Monroe to distinguish Section 1983 from18 U.S.C. 242: both concern the deprivation of constitu-tional rights under color of law, but unlike Section 1983,18 U.S.C. 242 reaches only “willful[]” deprivations ofrights. The Court’s rejection of a scienter requirementsays nothing about causation of the kind on which theSecond Circuit relied, and certainly does not imply afreewheeling “reasonably foreseeable” standard applica-ble to all Section 1983 cases.

Second, this Court has squarely rejected a reading ofthe Due Process Clause that makes state actors liablefor all foreseeable consequences of their actions. SeeMartinez v. California, 444 U.S. 277, 284-285 (1980) (pa-rolee’s killing of plaintiff’s decedent not state action“[r]egardless of whether * * * the state parole boardcould be said either to have had a ‘duty’ to avoid harm tohis victim or to have proximately caused [plaintiff ’s dece-dent’s] death”) (citing Palsgraf v. Long Island R.R.,248 N.Y. 339 (1928)). A rule of mere foreseeabilitywould effectively convert the Constitution andSection 1983 into the “font of tort law,” Paul, 424 U.S. at701, that this Court has long resisted. See, e.g., Danielsv. Williams, 474 U.S. 327, 332 (1986) (“Our Constitution* * * does not purport to supplant traditional tort law

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in laying down rules of conduct to regulate liability forinjuries that attend living together in society.”).

Third, even if Zahrey were correct that Section 1983sometimes incorporates a general tort rule of proximatecausation, the cause of action here is informed by themore specific parameters of the common law tort of ma-licious prosecution, as discussed below. Indeed, thecommon law expressly rejects ordinary causation princi-ples in describing procurement, which is the kind of ma-licious prosecution relevant here. See p. 25, infra (quot-ing Restatement (Second) of Torts § 653 cmt. d (1977)(Restatement)). The more specific rule of the commonlaw supersedes any general background principle ofproximate causation.

C. A Prosecutor Who Is Immune From Suit For Use OfFabricated Evidence At Trial Is Not Liable Under Sec-tion 1983 For Fabrication Of That Evidence Before Trial

Both Zahrey and the decision below began with thepremise that a police officer who fabricates evidencemay be liable under Section 1983 when that evidence islater used “to procure a conviction.” Pet. App. 18a (cita-tion omitted); see Zahrey, 221 F.3d at 351-352. Fromthere, both courts reasoned that it would be “perverse”to hold that a prosecutor who engages in the identicalfabrication could nonetheless be free from liability. Pet.App. 18a; see Zahrey, 221 F.3d at 353.

Both courts of appeals misunderstood why and whena police officer who fabricates is liable. A fabricatingofficer is liable under Section 1983 under a form of vicar-ious liability. As discussed above, he is not liable be-cause the fabrication itself is a constitutional violation.Neither is he liable because the fabrication may foresee-ably be used to secure a conviction. He is liable because

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the introduction of the fabricated evidence at trial is aconstitutional violation, and even though he personallydid not commit this violation, his earlier act of fabrica-tion was its animating force. That connection—betweenthe initial fabrication and the subsequent corruption ofcriminal proceedings—makes him an appropriate personto bear responsibility.

This is precisely the logic of the common law in hold-ing liable a person who wrongfully procures the institu-tion of criminal proceedings—a species of the tort ofmalicious prosecution. Liability for procurement is notpredicated on the simple act of fabricating the evidence;if there were no subsequent use of the evidence, therewould be no liability. Liability for procurement arisesfrom the later use of the evidence—even though the pro-curer himself only has fabricated the evidence, and hasnot used it. Once again, the liability is vicarious: Thecommon law treats the fabricator as responsible for thesubsequent use of the evidence because his fabrication“procured” the criminal proceedings in the first in-stance. Section 1983 liability for a fabricating policeofficer works in just the same way.

This explanation of the common law reveals why thecourt of appeals’ reasoning—of simply substituting thefabricating prosecutor in place of the fabricating offi-cer—must fail. The procurement theory cannot be atissue in this case, because the prosecutor did introducethe evidence—and is absolutely immune from suit fordoing so. It is both a misuse of language and a misun-derstanding of doctrine to speak of a prosecutor procur-ing his own institution of proceedings; he in fact initiatedthe proceedings, rather than procuring them. Everyoneagrees the prosecutor is immune for this initiation ofproceedings. To impose a form of vicarious liability for

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it, when the law chooses not to impose direct liability,would be anomalous.

1. Common law malicious prosecution informs an ac-tion brought under Section 1983 seeking damages forunconstitutional confinement imposed pursuant tolegal process

This Court has “repeatedly noted that 42 U.S.C.§ 1983 creates a species of tort liability.” Heck v.Humphrey, 512 U.S. 477, 483 (1994) (quoting MemphisCmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305 (1986)).The specific rules of the common law define the reach ofthat tort liability.

“[O]ver the centuries the common law of torts hasdeveloped a set of rules to implement the principlethat a person should be compensated fairly for inju-ries caused by the violation of his legal rights. Theserules, defining the elements of damages and the pre-requisites for their recovery, provide the appropriatestarting point for the inquiry under [Section] 1983 aswell.”

Ibid. (first set of brackets in original) (quoting Carey v.Piphus, 435 U.S. 247, 257-258 (1978)). This court has“reemphasize[d] that [its] role is to interpret the intentof Congress in enacting [Section] 1983, not to make afreewheeling policy choice, and that [it is] guided in in-terpreting Congress’ intent by common-law tradition.”Malley v. Briggs, 475 U.S. 335, 342 (1986).

In Heck, the plaintiff, who was confined following acriminal conviction, alleged that the state police investi-gator and county prosecutors handling his case “hadengaged in an unlawful, unreasonable, and arbitraryinvestigation leading to [his] arrest; knowingly de-stroyed evidence which was exculpatory * * *; and

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caused an illegal and unlawful voice identification proce-dure to be used at [his] trial.” 512 U.S. at 479 (internalquotation marks omitted). Heck sought money damagesfor his allegedly wrongful imprisonment. Ibid.

Aside from the factual particulars of the allegations,respondents’ legal claims under Section 1983 are indis-tinguishable from Heck’s. Thus, as in Heck, “[t]hecommon-law cause of action for malicious prosecutionprovides the closest analogy to claims of the type consid-ered here because * * * it permits damages for con-finement imposed pursuant to legal process.” 512 U.S.at 484.

This Court has likewise looked to the common law ofmalicious prosecution in recognizing immunities in casesseeking damages for allegedly unconstitutional confine-ment pursuant to legal process. For example, in Malley,the Court held that an officer is not absolutely immuneunder Section 1983 for presenting an insufficient affida-vit to a judicial officer who issued a warrant resulting inthe plaintiff ’s arrest. The Court implied that the policeofficer “could be held liable,” Malley, 475 U.S. at 340,and referred to nineteenth century common law mali-cious prosecution cases, see id. at 341 n.3. See alsoKalina, 522 U.S. at 124 & n.11 (noting that Imbler“rel[ied] on common-law decisions providing prosecutorswith absolute immunity from tort actions based onclaims that the decision to prosecute was malicious andunsupported by probable cause” and “drew guidancefrom * * * the first American cases addressing theavailability of malicious prosecution actions against pub-lic prosecutors”).

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2. By analogy to common law malicious prosecution, apolice officer who fabricates evidence may be liablefor deprivation of a criminal defendant’s constitu-tional rights when the evidence is used at trial

The core concern of the tort of malicious prosecutionis that criminal prosecution not be wrongfully cooptedand put to improper ends. Because that is so, the cen-tral event for the tort is the institution of criminal pro-ceedings. Restatement § 654. Under the common law,a person may be liable for malicious prosecution if, interalia, he either “initiates or procures the institution ofcriminal proceedings” against another. Id. § 653 (em-phasis added). In other words, a malicious prosecutionclaim can proceed on a theory of primary liability (initia-tion) or vicarious liability (procurement).

a. Generally, a person “initiates” criminal proceed-ings if he “mak[es] a charge before a public official orbody in such form as to require the official or body todetermine whether process shall or shall not be issuedagainst the accused.” Restatement § 653 cmt. c. Thatcannot be the basis for Section 1983 liability here be-cause such initiating acts, when undertaken by a prose-cutor, are afforded absolute immunity. See Imbler, su-pra; Kalina, supra. By contrast, a police officer whoapplies for and obtains a warrant by swearing out a falseor insufficient affidavit may be liable for wrongful initia-tion. See Malley, 475 U.S. 240-241 & n.3; Restatement§ 653 cmt. c (“[O]ne who * * * presents to a magistratea sworn charge upon which a warrant of arrest is issued,initiates the criminal proceedings of which the issuanceof a warrant is the institution.”).

b. A person can also be liable for malicious prosecu-tion by “procuring” criminal proceedings. There, “[i]t is

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6 The procurement theory may therefore require a certain relation-ship between the procuring party and the instituting party. For exam-ple, the courts of appeals have most often invoked a procurementtheory of liability when a police officer dupes the prosecutor by sup-plying fabricated evidence, while concealing the fabrication. See p. 26,infra (citing cases). Likewise, the Restatement suggests coercion ofthe prosecutor would support a procurement theory of liability. SeeRestatement § 653 cmt. g & ill. 4. A conspiracy between officer and

not necessary to liability * * * that the defendant per-sonally or through an agent shall have made the formalcharge upon which the proceedings were instituted. Itis enough that he has induced a third person”—often theprosecutor—“to make the charge.” Restatement § 653cmt. f. The procurement theory recognizes that personsother than the formal initiator may bear responsibilityfor a prosecution. Cf. Perdu v. Connerly, 24 S.C.L.(Rice) 48, 52 (1838) (malicious prosecution action) (“Thedefendant is liable for [a third party’s] act, as done byhis procurement; for, in trespass, all who are concernedin any way are principals.”). It is on this theory that afabricating officer may be liable for the deprivation ofliberty caused by a conviction obtained with his fabri-cated evidence.

The standard requirements for procurement, how-ever, are stricter than simple foreseeability:

It is, however, not enough that some act of his shouldhave caused the third person to initiate the proceed-ings. * * * The giving of the information or themaking of the accusation * * * does not constitutea procurement of the proceedings that the third per-son initiates if it is left to the uncontrolled choice ofthe third person to bring the proceedings or not ashe may see fit.

Restatement § 653 cmt. d; see id., cmt. g.6

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prosecutor may also support a procurement theory of officer liability,as may anything that makes “an intelligent exercise of the [prosecu-tor’s] discretion * * * impossible,” id. cmt. g.

7 These cases and others exhibit some diversity of opinion on theparticular circumstances justifying liability of fabricating officers.Because the police who investigated respondents are not parties here,the Court need not confront those issues.

Once a person is found to have procured the criminalproceedings, that person is liable as if he himself initi-ated those proceedings. “[O]ne who procures a thirdperson to institute criminal proceedings against anotheris liable under the same conditions as though he hadhimself initiated the proceedings.” Restatement § 653cmt. d (emphasis added). Colloquially speaking, the pro-curer stands in the shoes of the initiator.

Thus, lower courts have held that a police officerwho, without the prosecutor’s knowledge, fabricates evi-dence may be held liable under Section 1983 because, byanalogy to malicious prosecution law, the officer hasprocured the liberty deprivation. See, e.g., Senra v.Cunningham, 9 F.3d 168, 174 (1st Cir. 1993); Barts v.Joyner, 865 F.2d 1187, 1195 (11th Cir.), cert. denied,493 U.S. 831 (1989); Jones v. City of Chicago, 856 F.2d985, 994 (7th Cir. 1988); Smiddy v. Varney, 665 F.2d261, 266 (9th Cir. 1981), cert. denied, 459 U.S. 829(1982).7 In effect, the police officer stands in the shoesof the prosecutor.

White v. Frank, 855 F.2d 956 (2d Cir. 1988), offersa particularly careful application of these principles.There, the court of appeals considered whether the de-fendant police officers could be liable under Section 1983for perjury before a grand jury, which resulted in theplaintiff ’s indictment, arrest, prosecution, and convic-tion. The court held that officers were absolutely im-

27

mune from liability for the act of testifying falsely in ajudicial proceeding—an act of fabrication—because atcommon law, their false statements would have beenabsolutely privileged. Id. at 958-959 (citing Briscoe,supra). But, the court continued, officers could be heldliable at common law for presenting false statements toa grand jury considering whether to return an indict-ment. There, the law provided an entirely separate“cause[] of action”—to wit, “an action for malicious pros-ecution,” on which the officers might be “liable for[their] role in initiating a baseless prosecution.” Id. at959; see id. at 961; see also Kalina, 522 U.S. at 133-134(Scalia, J., concurring) (employing similar analysis).For that reason, White imposed Section 1983 liability.

In short, a police officer who fabricates evidence isnot liable under Section 1983 for the conduct of fabricat-ing the evidence itself (e.g., suborning perjury or testify-ing falsely). Rather, the fabricating officer may be liablefor his role in instituting wrongful proceedings, includ-ing the presentation of false evidence to the prosecutorfor use at trial. This is so even though he plays no rolein actually introducing that evidence at trial, becauseprocuring the prosecution with the fabricated evidenceitself justifies holding him liable.

c. Before this case, the Court’s closest encounterwith the procurement theory of liability in a Section1983 or Bivens case occurred in Hartman, supra, wherethe plaintiff sought to hold investigators liable for a re-taliatory prosecution. The Court first noted that a“Bivens (or [Section] 1983) action for retaliatory prose-cution will not be brought against the prosecutor, who isabsolutely immune from liability for the decision to pros-ecute.” Hartman, 547 U.S. at 261-262 (citing Imbler,supra). Rather, in Hartman, “the defendant [was] a

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nonprosecutor * * * who may have influenced theprosecutorial decision but did not himself make it.” Id.at 262. In that situation, the Court explained, “the causeof action will not be strictly for retaliatory prosecution,but for successful retaliatory inducement to prosecute,”ibid., which the Restatement labels “procurement” inthe context of malicious prosecution.

This Court not only recognized in Hartman that pro-curement was the operative theory, but also fashioned atest virtually identical to that of the Restatement. Com-pare Hartman, 547 U.S. at 262 (plaintiff “must showthat the nonprosecuting official * * * induced the pros-ecutor to bring charges that would not have been in-itiated without his urging”), with Restatement § 653cmt. g (“In order to charge a private person with re-sponsibility for the initiation of proceedings by a publicofficial, it must therefore appear that his desire to havethe proceedings initiated, expressed by direction, re-quest or pressure of any kind, was the determining fac-tor in the official’s decision to commence the prosecu-tion.”). Hartman thus supports analyzing liability forfabricating police officers under Section 1983 by analogyto common law actions for procuring wrongful prosecu-tions.

3. By analogy to common law malicious prosecution, aprosecutor who fabricates evidence and introduces itat trial is not liable under Section 1983

Once the common law backdrop is understood, thedistinction between a fabricating police officer and afabricating prosecutor becomes evident. Contrary to thecourt of appeals’ view, the one cannot be substituted forthe other. That is because the wrongful act at commonlaw is instituting proceedings based on fabricated evi-

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8 Similarly, none of the relationships between police officer andprosecutor that justify procurement liability, see note 6, supra, canexist when the prosecutor both fabricates and introduces the evidence.A person acting alone cannot dupe himself, coerce himself, conspirewith himself, or impair his own discretion.

dence. While the fabricating officer may be vicariouslyliable for that act, the prosecutor is always immune forit.

a. By analogy to common law malicious prosecution,a fabricating officer may be held liable on an “initiation”or “procurement” theory—and if petitioners are liable,it likewise must be on one of these theories. But thisextrapolation, from officer to prosecutor, cannot be ac-complished. Liability on an initiation theory cannottranslate to the prosecutor, because he is absolutely im-mune for initiating a prosecution. And the procurementtheory fares no better. As suggested above, procure-ment liability for malicious prosecution exists to assignliability to a blameworthy person for wrongful institu-tion of a proceeding actually performed by another. Thetheory is irrelevant when the blameworthy person andthe initiator of the proceeding are one and the same.8

Here, the initiator—the trial prosecutor—is the onlyperson responsible for the wrongful act of proceedingwith a corrupt case: to use an earlier metaphor, theprosecutor already stands in his own shoes.

Or to put the point in another way, the procurementtheory is a tool for assigning liability to non-prosecu-tors—not a theory (as respondents would have it) forcreating liability for prosecutors. As to prosecutors, theresponsibility for the wrongful conduct is already clear—but so too is the absolute immunity for it. Indeed, theinitiation of a wrongful action, of which fabrication ofevidence is a simple component, is the prototypical con-

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duct for which prosecutors receive protection. SeeDellums v. Powell, 660 F.2d 802, 806 (D.C. Cir. 1981)(“Never has a prosecutorial official been held liable forcausing a prosecution to be brought” even based on “ac-tions taken in an administrative or investigative capac-ity.”).

b. This is exactly the result reached in Yaselli v.Goff, 12 F.2d 396 (2d Cir. 1926), aff ’d, 275 U.S. 503(1927) (per curiam), which this Court summarily af-firmed and has repeatedly cited with approval. SeeImbler, 424 U.S. at 422, 424; Butz v. Economou, 438 U.S.478, 509-510 (1978); Burns, 500 U.S. at 490. In Yaselli,the plaintiff brought a malicious prosecution claimagainst a Special Assistant to the Attorney General, al-leging that the prosecutor had obtained the indictmentagainst him by presenting false evidence to the grandjury. The court of appeals held that the prosecutor wasabsolutely immune. But the court went on to addressplaintiff ’s “novel question, which ha[d] not * * * be-fore been presented to the courts”: Whether the prose-cutor could be held liable instead for conspiring to beappointed a Special Assistant in order to prosecute theplaintiff without probable cause. Yaselli, 12 F.2d at 406.Yaselli rejected the earlier conspiracy as irrelevant, andexplained that “[t]he important fact is that * * * havingbeen appointed, the public interests require that he shallbe free and fearless to act in the discharge of his officialduties.” Id. at 407. The same logic applies in this case:All the wrongful conduct is of a single piece—the wrong-ful institution and conduct of a criminal proceeding—forwhich the prosecutor is absolutely immune.

Yaselli’s refusal (see 12 F.2d at 407) to follow Stew-art v. Cooley, 23 Minn. 347 (1877), is particularly rele-vant. Stewart had suggested that a judge who procured

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a prosecution that came before his own court could notinvoke judicial immunity against an action for maliciousprosecution. The Stewart court reasoned that “such aconspiracy, previously formed * * * would subject allthe parties engaged in it to liability” because “[t]he actof entering into such an agreement was not done in thecourse of any judicial proceeding, or in the discharge ofany judicial function or duty.” Id. at 351. Plaintiff ’scounsel in Yaselli pointed to Stewart for the propositionthat “a wrongdoer cannot become immune by the suc-cessful accomplishment of part of the wrong which en-ables him to do the rest.” 12 F.2d at 407. That counsel’sargument, and the reasoning in Stewart, are preciselythe mistaken views adopted by Zahrey and respondentshere. Yaselli rejected that procurement-based argu-ment because the relevant “wrongful act on the part ofthe judge”—that is, the act on which tort liability ispredicated—“consisted in the issuing of process,” an actfor which there is absolute immunity. Ibid. (quoting2 Thomas M. Cooley, A Treatise on the Law of Torts orthe Wrongs Which Arise Independently of Contract801 n.23 (3d ed. 1906)). Much the same is true of thiscase, where the prosecutor’s pre-trial fabrication is partand parcel of the wrongful initiation of proceedings onwhich tort liability is predicated—and for which theprosecutor is absolutely immune.

D. Imposing Section 1983 Liability On Prosecutors Is Un-warranted On Policy Grounds Because Criminal Defen-dants Have Alternative Civil Remedies And AdequateSafeguards Exist Against Prosecutors’ Illegal Behavior

If the allegations in this suit are true, petitioners’efforts to convict respondents constitute a reprehensiblebreach of public trust. But providing absolute immunity

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in such a case will not “leave the public powerless to de-ter misconduct or to punish that which occurs.” Imbler,424 U.S. at 429. Prosecutions under 18 U.S.C. 242, “thecriminal analog of [Section] 1983,” can punish wrongdo-ers, as can prosecutions for perjury. Imbler, 424 U.S. at429. Furthermore, rigorous discipline by the bar associ-ation is a potent tool for ensuring that prosecutors liveup to the responsibilities of their office. See id. at 429 &n.30. Indeed, the “prosecutor stands perhaps unique* * * in his amenability to professional discipline.” Id.at 429. Criminal defendants are likewise protected by“ ‘[t]he safeguards built into the judicial system’ ” as a“check on prosecutorial actions.” Burns, 500 U.S. at 492(quoting Butz, 438 U.S. at 512). See generally Gov’t Br.at 31-33, Van de Kamp, supra (No. 07-854) (discussingsafeguards).

Providing absolute prosecutorial immunity in thiscase also will not mean that respondents, or those intheir position, are without a civil remedy. A police offi-cer who fabricates evidence introduced at trial may beliable under Section 1983. Likewise, a “prosecutor” who“perform[ed] [only] the investigative functions normallyperformed by a detective or police officer,” Buckley, 509U.S. at 273, would be liable on the same facts. Seepp. 24-28, supra. Both prosecutors and police officers,moreover, may be liable under various state tort lawtheories (e.g., intentional infliction of emotional distress,negligence) if they were acting outside the scope of theiremployment. See, e.g., Pet. App. 16a (remanding forfurther proceedings on such a claim). Similarly, a Statemay waive sovereign immunity under a state tort claimsact for actions taken within the scope of a state official’s

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9 Iowa bars all malicious prosecution claims against state employeesacting within the scope of their employment. Iowa Code Ann. § 669.14.5(West 1998). By contrast, the Federal Tort Claims Act waives sover-eign immunity for malicious prosecution claims against investigativeand law enforcement officers of the United States. See 28 U.S.C.2680(h).

10 See 28 U.S.C. 1495, 2513; Ala. Code § 29-2-156 (2003); Cal. PenalCode § 4904 (2000); 735 Ill. Comp. Stat. Ann. 5/2-702 (West Supp.2009); 705 Ill. Comp. Stat. Ann. 505/8 (West 2007); Iowa Code Ann.§ 663A.1 (West 1998); La. Rev. Stat. Ann. § 15:572.8 (West 2005);Maine Rev. Stat. Ann. tit. 14, § 8241 (West 2003); N.J. Stat. Ann.§ 52:4C-1 (West 2001); Ohio Rev. Code Ann. § 2743.48 (West 2000);Okla. Stat. Ann. tit. 51, § 154.B (West 2008); Tex. Civ. Prac. & Rem.Code Ann. § 103.001 (Vernon 2005); Va. Code Ann. § 8.01-195.11 (West2009); Wis. Stat. Ann. § 775.05 (West 2009).

employment.9 In addition, a wrongfully convicted crimi-nal defendant who is later exonerated may have a statu-tory right of compensation.10

Consequently, a decision favoring petitioners wouldhardly ever deny any recovery to a wronged party. Bycontrast, a decision favoring respondents, by allowingtheir cause of action, would undo absolute immunity doc-trine, with untold social costs. In the exceedingly rarecase in which provable wrongdoing by a prosecutor isleft uncompensated, “it has been thought in the endbetter to leave unredressed the wrongs done by dishon-est officers than to subject those who try to do theirduty to the constant dread of retaliation.” Imbler,424 U.S. at 428 (quoting Gregoire, 177 F.2d at 581 (L.Hand, J.)).

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CONCLUSION

The judgment below should be reversed.

Respectfully submitted.

ELENA KAGANSolicitor General

TONY WESTAssistant Attorney General

NEAL KUMAR KATYALDeputy Solicitor General

BENJAMIN J. HORWICHAssistant to the Solicitor

GeneralBARBARA L. HERWIGJOSHUA WALDMAN

Attorneys

JULY 2009